said athuman vs sikitu juma 2005 tzhc 297 25 april 2005

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM PC CIVIL APPEAL NO.123 OF 2004 SAIDI ATHUMANI.............................................. APPLICANT VERSUS SIKITU JUMA............................................ RESPONDENT JUDGMENT MANENTO, JK : This is a second appeal. The appellant Saidi A thum ani and the respondent, Sikitu d/o Jum a had m arried in 1992 but som etim es in the year 2001 their m arriage life was not a happy one. The husband now the appellant issued a ‘talak ’ to the respondent. The m atter reached the primary court where it was found as a fact that the m arriage had broken irreparably. The appellant and the respondent could not live as a wife and a husband any more. Unfortunately, the m arriage between the parties was not blessed with any child. Therefore, there was no issue o f custody. H ow ever, the respondent dem anded a share in a house they jointly built at a place called M akangarawe. That was the issue which received cold hands from the appellant. He disputed to have jointly built the house with the respondent. Both the trial prim ary court and the district appellate court found, from the evidence in record that the house was built during the subsistence o f the m arriage betw een the parties. The trial prim ary court aw arded the appellant one third (V3) o f the value o f the house to the respondent. The appellant was aggrieved. He appealed to the district court. The appellate district court having been satisfied that the house was built at the tim e o f the cohabitation o f the appellant and respondent, and that the respondent contributed in one w ay or another, by filling the gravel to the foundation, cooking for the m asons and other em ployees, together with the provision o f the ordinary m atrim onial rights to the appellants, it aw arded her h a lf (V2) o f the value o f the house. The appellant was further aggrieved by that decision, hence this appeal. In his m em orandum o f appeal, he urged that the appellate district court erred in holding that the house in dispute was jointly built by the appellant and the respondent, that the respondent contributed tow ards the erection o f the house in question and thirdly that the m agistrate erred in holding that the house in dispute was built after their m arriage. The respondent replied in w riting by saying that she totally agreed with the decision o f the appellate district magistrate. D uring the hearing o f the appeal, the appellant subm itted that he had built the house in question while he was living w ith his first wife w ith whom they had four children. In replying to that, the respondent subm itted that when she got m arried, the appellant was living in a rented house o f one Ngoro w here they all slept w ith the children. The respondent further said that the appellant had refused to pay her what the B A K W A TA had ordered him to pay her. The fam ily reconciliators had ordered him to pay the respondent shs. 300,000/=. The respondent accepted it on condition that he would pay her shs. 10,000/= per month. The respondent w anted to be paid in two installm ents, a fact which the appellant did not accept. The respondent was then left with only one alternative, that w as to refer the m atter to the court. From the evidence before the trial primary court, the decision o f the appellate district court and subm issions made before this court, I agree with the two courts below that, the house in question was built during the subsistence o f the m arriage betw een the appellant and the respondent. Therefore, it is/was a m atrim onial home. Secondly, it w as the issue o f the contribution by the parties tow ards the erection o f that house. The primary court aw arded the respondent one third (V3) value o f the said house while the district appellate court raised it to half (V2) o f the value o f the house. The prim ary court took into consideration the evidence that the appellant had another house which he sold and so he used part o f the money in the building o f the house. There were no reasons given by the appellate district court w hen varying the award o f the trial court. It was in the subm ission o f the respondent that w hen they m arried, the appellant had no paid em ploym ent. That then justifies that he had his money which he got before m arrying the respondent, and according to the appellant’s evidence, that m oney was from the sale o f a house he owned and sold before the m arriage w ith the respondent. T herefore, the appellants contribution tow ards the building o f the house was greater than that o f the respondent. Thus on the basis o f section 114 o f the L aw o f M arriage Act, 1971, the appellant is entitled to a bigger share, therefore, the assessm ent reached by the trial prim ary court met the end o f justice in this case. The respondent is therefore entitled to '^(one third) o f the value o f the house in dispute. From w hat I have said above, the appeal is dism issed, but the order o f the appellate district court that the respondent is entitled to Vi o f the value o f the house is quashed and set aside. The order o f the prim ary court that the respondent be paid one third (V3) o f the value o f the house is restored. Each party to m eet his own costs. A.R. JAJI KIONGOZI. 25-4-2005 Coram: A .A .M . Shayo, RHC Appellant: Present in person Respondent: Present in person Cc: Claudius Order: Judgm ent delivered in cham bers today 25/4/05 in the presence o f both parties. A.A.M. Shayo REGISTRAR-HIGH COURT 25/4/2005